Guatemalan native Melody Klingenfuss knows life in the U.S. before and after DACA, a program that puts off deportation and provides other opportunities for hundreds of thousands of people who arrived in the country illegally as children.
She describes DACA as her “cloak of protection.”
But this spring, while the world copes with a health crisis, she and thousands of other DACA recipients face an added source of tension – they’re waiting to hear if that cloak will be yanked away.
The U.S. Supreme Court is expected to rule sometime before the end of June on the fate of the Deferred Action for Childhood Arrivals program, or DACA for short. The ruling could have life-changing implications for some 649,070 immigrants across the country, more than a fourth of whom live in California.
But whether the expected ruling will be the final word on the controversial program depends on how the justices make their decision. Many observers, including those who support DACA, believe the conservative-majority court will side in favor of the Trump administration and nix the program.
But even if that happens, different scenarios could play out that could allow DACA recipients to stay in the country.
It’s even possible the coronavirus pandemic could play a role.
In an unusual extra brief the justices agreed to accept last month, immigrant rights advocates asked the court to consider the contributions of DACA-holders who work in health care.
“Termination of DACA during this national emergency would be catastrophic,” the filing said.
President Obama created DACA in 2012, after considerable pressure from immigrant rights advocates to do something in the face of Congressional foot-dragging on immigration reform.
“They are Americans in their heart, in their minds, in every single way but one: on paper,” Obama said of DACA recipients while announcing his new policy from the Rose Garden.
Obama called it a “temporary stopgap measure” and “not a permanent fix.”
The program helped those who were brought to the country before the age of 16 and were younger than 31 as of June 15, 2012, the date Obama announced it.
People who have DACA status get a two-year deferment from deportation, a Social Security number, and the right to legally work in the U.S. Applicants must be at least 15 years old, in school or a high school graduate, in the military or honorably discharged, and not have a record of any felony or serious misdemeanor conviction. The status is renewable every two years.
Critics immediately pounced on DACA as a veiled amnesty program. They said Obama had overstepped his authority as president. Some said he should have focused on the needs of American workers instead.
“The key issue has always been work permits,” said Roy Beck, who heads Numbers USA, a national organization that seeks to reduce both legal and illegal immigration.
President Donald Trump, whose election campaign and presidency targeted immigration, has waffled about DACA. At one point, he called its young recipients “incredible kids.” But on September 5, 2017, the Trump administration announced a plan to phase out DACA and called on Congress to pass a replacement.
“I do not favor punishing children, most of whom are now adults, for the actions of their parents,” President Trump said in a statement. “But we must also recognize that we are a nation of opportunity because we are a nation of laws.”
A flurry of lawsuits ensued, including five from California. Lawsuits were consolidated, including one involving the University of California system: Department of Homeland Security v. Regents of the University of California. It is one of three cases the U.S. Supreme Court agreed to review after three federal district courts – in California, New York and the District of Colombia – issued preliminary injunctions against the administration’s move to end DACA.
The Supreme Court heard oral arguments on the case on Nov. 12. Los Angeles resident and DACA recipient Rosa Barrientos was on hand to watch and listen as it happened.
“For three days and two nights we camped outside the Supreme Court so we could get seats,” said Barrientos, who traveled to D.C. with a group of fellow activists from the Coalition for Humane Immigrant Rights of Los Angeles, known as CHIRLA.
Barrientos said some of the legalese went over her head. And she worried that the discussions didn’t account “for our humanity and the impact on our families and our lives overall.”
For her, DACA has been “life changing.”
Now 26, she arrived in the U.S. from Mexico when she was 4. When she was a student at Garfield High, the L.A. resident couldn’t accept a scholarship because of her illegal status. She also couldn’t get a driver’s license, which at the time wasn’t offered to people who were not legal residents. But with DACA, she got a work permit and interned for a Congressional office, got a driver’s license and even accepted that scholarship she once turned down.
Now a college graduate, she has a job with CHIRLA as an organizer.
While she’s passionate about the program, she’s not optimistic that the ruling will go her way.
“We have to work under the assumption that they’re not going to have mercy on us,” she said.
Some attorneys said it’s not that clear.
“I understand the pessimism many of us feel because of what this administration has done. But we really don’t know,” said Monica Ramirez Almadani, co-director of the UC Irvine Law School Immigrant Rights Clinic and one of the lawyers who helped win a preliminary injuction against the government in the lawsuit involving the University of California system.
“There are many different possible outcomes.”
The Supreme Court justices are focusing on two central questions: whether the court can review the president’s decision to end DACA, and whether the executive branch followed proper procedures in how it went about terminating DACA.
Araceli Martinez Olguin, an attorney with the National Immigration Law Center, said she and other lawyers were surprised at the number of questions justices asked about the court’s role in assessing the administration’s policy changes.
If the justices ultimately decide that courts don’t have a role, “That’s the end of the inquiry and the court won’t look any further into what the administration did,” she said.
But if the justices agree with lower courts, which have said courts can rule on this issue, Martinez Olguin said “we’ll get an answer on whether the administration provided sufficient basis for terminating the program.”
The Supreme Court then would review whether DACA was terminated lawfully, attorneys said. And, depending on what they find and the reasons they provide, that would determine whether the program is allowed to continue and if new applications can be taken. It also might mean the program could be terminated completely, or scaled back, for example by allowing work permits to expire.
A pandemic curveball
And a new issue has come into play, the coronavirus pandemic.
In an unusual step, the Supreme Court agreed to accept an additional brief from several attorneys, including the L.A.-based National Immigration Law Center, who are asking the court to take into account the role that DACA holders, especially health care providers, are playing during the current public health crisis. More than 200,000 DACA recipients have been deemed to be essential workers, including 28,200 nurses, personal care aides and medical assistants, among others, according to the Center for American Progress, a D.C.-based policy institute.
“I thought it was promising that the court allowed that extra briefing,” said Sarah Pierce, an analyst with the D.C.-based Migration Policy Institute.
Numbers USA’s Beck, whose organization pushes for more immigration caps, said his best case scenario is that the court rules in Trump’s favor and the president immediately pulls DACA holders’ work permits. Beck would then like to see Congress respond by “passing a permanent amnesty for the DACA recipients, if and only if, they also permanently end chain migration for extended family members and mandate e-verify for all employers.”
Polls have consistently shown Beck’s view to be in the minority. Most Americans support the DACA program, and even those who are against illegal immigration have found a soft spot for people who were brought to the country as children.
“This is a very sympathetic case. We’re dealing with individuals who have lived here since they were children,” said Almadani, of UCI.
While a ruling is expected to decide the fate of the program, it’s not necessarily the final word.
“I think it’s fair to say this decision will decide whether the DACA program as we currently know it will survive,” Almadani said. “It will be a definitive decision addressing the issues that are currently at stake. But the court could also surprise us. And there may be ways to challenge aspects of the Trump administration’s decision to end the program in future litigation.”
It also might not be the final step because immigrant-rights advocates are simultaneously pushing for a solution in Congress. The specific solution, in their view, for now, is HR-6, the American Dream and Promise Act, introduced by Rep. Lucille Roybal-Allard, D-Los Angeles. Some 2.5 million immigrants could be eligible for protections and a pathway to citizenship under her bill, which passed the House but has not been heard in the U.S. Senate.
“Our eyes will be set on HR-6 Dream Act,” said Klingenfuss, the Guatemalan immigrant who considers DACA her protection cloak. Now 25, she came from Guatemala at the age of 9 to reunite with her mother. She earned a masters degree from USC and now is an organizer with CHIRLA.
She said DACA helped change the way she sees the world — and “the way you see your place in the world.”
But even if it goes away, she’s already working on getting out the vote in the November election and supporting Royball-Allard’s Dream Act.
“Our dreams will continue regardless of DACA.”